In 1916, Colorado Justice Scott had before him the time-honored dilemma of stare decisis and could do no better than the words of New Hampshire bard Sam Walter Foss (1858-1911; pictured below) in his poem The Calf Path.

In reading it, one comes face to face with the danger of a strict adherence to stare decisis. Foss did not likely write the poem in the context of the law of stare decisis but, rather, as a simple reflection on the result of thoughtless adherence to same ol' same ol'. But to Scott, the words were irresistible.

In his dissenting reasons in Van Kleeck v Ramer, Justice Scott wrote an opinion endorsed by two of his colleagues on the court and preambled by:

"If I may be permitted to suggest, for the consideration of courts and judges who feel impelled to sacrifice their sense of reason and justice upon the altar of the Golden Calf of precedent, the quaint philosophy of Sam Walter Foss."


One day through the primeval wood
A calf walked home, as good calves should;
But left a trail all bent askew,
A crooked trail, as all calves do.

Since then, three hundred years have fled,
And, I infer, the calf is dead.
But still he left behind this trail,
and thereby hangs my moral tale.


Sam Walter FossThe trail was taken up next day
By a lone dog that passed that way.
And then a wise bell-whether sheep
Pursued the trail o’er vale and steep,

And drew the flock behind him, too,
As good bell-wethers always do.
So from that day, o’er hill and glade,
Through those old woods a path was made,

And many men wound in and out,
And bent and turned and dodged about,
And uttered words of righteous wrath,
Because ‘twas such a crooked path.

But still they followed - do not laugh
The first migrations of that calf,
And through this winding woodway stalked
Because he wabbled when he walked.

This forest path became a lane,
That bent and turned and turned again.
This crooked lane became a road,
Where many a poor horse, with his load,

Toiled on, beneath the burning sun,
And traveled some three miles in one.
And thus a century and a half
They trod the footsteps of that calf.

The years passed on with swiftness fleet,
The road became a village street,
And this, before men were aware,
A city’s crowded thoroughfare.

And soon the central street was this
Of a renowned metropolis.
And men two centuries and a half
Trod the footsteps of that calf.

Each day a hundred thousand rout
Followed the zigzag calf about;
And o’er his crooked journey went
The traffic of a continent.

A hundred thousand men were led
By one calf near three centuries dead.
They followed still his crooked way,
And lost one hundred years a day.

For thus such reverence is lent
To well-established precedent.
A moral lesson this might teach
Were I ordained and called to preach.

For men are prone to go it blind
Along the calf-paths of the mind,
And toil away from sun to sun
To do what other men have done.

They follow in the beaten track,
And out and in, and forth and back,
And still their devious course pursue
To keep the path that others do.

But how the wise old wood-gods laugh,
Who saw the first primeval calf!
Ah! Many things this tale might teach;
But I am not ordained to preach.

REFERENCES:

  • Arnold-Burger, K., "A Step Back in Time", published in The Barletter, May/June 2006, page 16 (Johnson County Bar Association, Kansas, USA.
  • Duhaime, Lloyd, Legal Definition of Stare Decisis
  • Duhaime, Lloyd, Poetic Justice: Law Poems
  • Megarry, R., Miscellany-at-Law (London: Wildy & Sons Ltd., 2006), pages 285-287.
  • Van Kleeck v Ramer 156 P 1108 and 62 Colo. 4 (1916)